Directives in Europe
DirectivesContent about Directives from the publication “The ABC of European Union law” (2010, European Union) by Klaus-Dieter Borchardt.
The directive is the most important legislative instrument alongside the regu lation. Its purpose is to reconcile the dual objectives of both securing the necessary uniformity of Union law and respecting the diversity of national traditions and structures. What the directive primarily aims for, then, is not the unification of the law, which is the regulation’s purpose, but its harmonisation. The idea is to remove contradictions and conflicts between national laws and regulations or gradually iron out inconsistencies so that, as far as possible, the same material conditions exist in all the Member States. The directive is one of the primary means deployed in building the single market.
Context of Directives in the European Union
A directive is binding on the Member States as regards the objective to be achieved but leaves it to the national authorities to decide on how the agreed Community objective is to be incorporated into their domestic legal systems. The reasoning behind this form of legislation is that it allows intervention in domestic economic and legal structures to take a milder form. In particular, Member States can take account of special domestic circumstances when implementing Community rules. What happens is that the directive does not supersede the laws of the Member States but places the Member States under an obligation to adapt their national law in line with Community provisions. The result is generally a two-stage law-making process.
More about Directives in the European Union
First, at the initial stage, the directive lays down the objective that is to be achieved at EU level by any or all Member State(s) to which it is addressed within a specified time-frame. The Union institutions can actually spell out the objective in such detailed terms as to leave the Member States with no room for manoeuvre, and this has in fact been done in directives on technical standards and environmental protection.
Second, at the national stage, the objective set at EU level is translated into actual legal or administrative provisions in the Member States. Even if the Member States are in principle free to determine the form and methods used to transpose their EU obligation into domestic law, EU criteria are used to assess whether they have done so in accordance with EU law. The general principle is that a legal situation must be generated in which the rights and obligations arising from the directive can be recognised with sufficient clarity and certainty to enable the Union citizen to invoke or, if appropriate, challenge them in the national courts. This normally involves enacting mandatory provisions of national law or repealing or amending existing rules. Administrative custom on its own is not enough since it can, by its very nature, be changed at will by the authorities concerned; nor does it have a sufficiently high profile.
Directives do not as a rule directly confer rights or impose obligations on the Union citizen. They are expressly addressed to the Member States alone. Rights and obligations for the citizen flow only from the measures enacted by the authorities of the Member States to implement the directive. This point is of no importance to citizens as long as the Member States actually comply with their Union obligation. But there are disadvantages for Union citizens where a Member State does not take the requisite implementing measures to achieve an objective set in a directive that would benefit them, or where the measures taken are inadequate. The Court of Justice has refused to tolerate such disadvantages, and a long line of cases has determined that in such circumstances Union citizens can plead that the directive or recommendation has direct effect in actions in the national courts to secure the rights conferred on them by it. Direct effect is defined by the Court as follows.
_The provisions of the directive must lay down the rights of the EU citizen/undertaking with sufficient clarity and precision.
_ The exercise of the rights is not conditional.
_ The national legislative authorities may not be given any room for manoeuvre regarding the content of the rules to be enacted.
_ The time allowed for implementation of the directive has expired.
The decisions of the Court of Justice concerning direct effect are based on the general view that the Member State is acting equivocally and unlawfully if it applies its old law without adapting it to the requirements of the directive. This is an abuse of rights by the Member State and the recognition of direct effect of the directive seeks to combat it by ensuring that the Member State derives no benefit from its violation of Union law. Direct effect thus has the effect of penalising the offending Member State. In that context it is significant that the Court of Justice has applied the principle solely in cases between citizen and Member State, and then only when the directive was for the citizen’s benefit and not to their detriment – in other words when the citizen’s position under the law as amended under the directive was more favourable than under the old law (known as ‘vertical direct effect’). However, application of the vertical direct effect of directives does not prevent the fact that the direct effect of a directive to the benefit of an individual may be to the detriment of another individual (the dual-effect directive, which is often found in procurement and environment law). This detriment should be considered as a negative legal reflex that stems inevitably from the Member States’ obligation to reconcile their legal order with the objectives of a directive at the end of the transposition period; there is no further detriment caused by recognition of the vertical effect of the directives.
The direct effect of directives in relations between citizens themselves (‘horizontal direct effect’) has not been accepted by the Court of Justice. The Court concludes from the punitive nature of the principle that it is not applicable to relations between private individuals, since they cannot be held liable for the consequences of the Member State’s failure to act. What the citizen needs to rely on is certainty in the law and the protection of legitimate expectations. The citizen must be able to count on the effect of a dir ective being achieved by national implementing measures. However, in its more recent case-law, the Court of Justice has tempered its rejection of the direct effect of directive law in private-law issues. It is limited to situations in which one contracting party invokes a right stemming from the directive against a right of the other party stemming from national law. This opens the way to a horizontal application of the directly applicable provisions of directives in situations concerning, for example, compliance with objective national law (when, for example, an enterprise wishes to oblige a competitor to comply with a national law which infringes on the law of the directive) or the implementation of obligations from national law which contradict application of the directive (such as the refusal to fulfil a contract with invocation of national prohibitory provisions that infringe the law of the directive).
The direct effect of a directive does not necessarily imply that a provision of the directive confers rights on the individual. In fact, the provisions of a directive have a direct effect insofar as they have the effect of objective law. The same conditions apply to the recognition of this effect as for the recognition of a direct effect, the only exception being that, instead of clear and precise law being set out for the Union citizen or enterprise, a clear and precise obligation is established for the Member States. Where this is the case, all institutions, i.e. the legislator, administration and courts of the Member States, are bound by the directive and must automatically comply with it and apply it as Union law with primacy. In concrete terms, they also therefore have an obligation to interpret national law in accordance with the directives or give the provision of the directive in question priority of application over conflicting national law. In addition, the directives have certain limiting effects on the Member States – even before the end of the transposition period. In view of the binding nature of a directive and their duty to facilitate the achievement of the Union’s tasks (Article 4 TEU), Member States must abstain, before the end of the transposition period, from any measure which could jeopardise the attainment of the objective of the directive.
In its judgments in Francovich and Bonifaci in 1991, the Court of Justice held that Member States are liable to pay damages where loss is sustained by reason of failure to transpose a directive in whole or in part. Both cases were brought against Italy for failure to transpose on time Council Directive 80/987/EEC of 20 October 1980 on the protection of employees in the event of the employer’s insolvency, which sought to protect the employee’s rights to remuneration in the period preceding insolvency and dismissal on grounds of insolvency. To that end, guarantee funds were to be established with protection from creditors; they were to be funded by employers, the public authorities or both. The problem facing the Court was that, although the aim of the directive was to confer on employed workers a personal right to continued payment of remuneration from the guarantee funds, this right could not be given direct effect by the national courts, meaning that they could not enforce it against the national authorities, since in the absence of measures transposing the directive the guarantee fund had not been established and it was not possible to ascertain who was the debtor in connection with the insolvency. The Court ruled that, by failing to implement the directive, Italy had deprived the employed workers in question of their rights and was accordingly liable for damages. Even if the duty to compensate is not written into Union law, the Court of Justice sees it as an integral part of the EU legal order, since its full effect would not be secured and the rights conferred by it would not be protected if Union citizens did not have the possibility of seeking and obtaining compensation for infringement of their rights by Member States acting in contravention of EU law.